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REBECCA NATION-BAILEY v.

ADRIAN PETER BAILEY

(SC 19245)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued December 3, 2014—officially released April 21, 2015
David N. Rubin, for the appellant (plaintiff).

Roger K. Smith, pro hac vice, with whom, on the

brief, were Robert Jon Hendricks, pro hac vice, and

Bernard J. Garbutt III, for the appellee (defendant).
Opinion

ROBINSON, J. The sole issue in this certified appeal

is whether a separation agreement that requires the

payment of unallocated alimony and child support

‘‘until the death of either party, the [w]ife’s remarriage

or cohabitation as defined by [General Statutes] § 46b86 (b),’’1

terminates the support obligation permanently

upon the wife’s cohabitation, or whetherthat agreement

affords the trial court discretion to suspend that obligation for the cohabitation period, which in this case

lasted approximately four months. The plaintiff, Rebecca Nation-Bailey, appeals, upon our grant of her petition for certification,2

from the judgment of the

Appellate Courtreversing the judgment of the trial court

and remanding the case with direction to, inter alia,

renderjudgmentterminating the obligation ofthe defendant, Adrian Peter Bailey, to pay the plaintiff alimony

‘‘as of the initial date of the plaintiff’s cohabitation

. . . .’’ Nation-Bailey v. Bailey, 144 Conn. App. 319,

330, 74 A.3d 433 (2013). On appeal, the plaintiff claims

that the Appellate Court improperly concluded that § 3

(B) of the parties’ separation agreement (agreement),

which was incorporated into the judgment dissolving

their marriage, ‘‘mandated the permanent cessation of

unallocated . . . support upon a finding of cohabitation by the plaintiff,’’ because, inter alia, the agreement:

(1) did not provide that the unallocated support obligation was nonmodifiable; and (2)includes § 46b-86 (b) by

reference, thus incorporating the trial court’s remedial

authority under that statute to modify, suspend, or terminate the alimony obligation. We conclude that the

plaintiff’s reading of the agreement is inconsistent with

its plain and unambiguous language. Accordingly, we

affirm the judgment of the Appellate Court.

The Appellate Court’s opinion aptly sets forth the

following undisputed facts and procedural history. ‘‘The

parties [married] on July 4, 1999, and one child was

born of their union. On February 21, 2007, the court,

incorporating by reference the terms of the agreement,

entered a judgment dissolving the parties’ marriage.

The relevant portions of the agreement are as follows.

‘‘Section 3 (B) provides in relevant part: ‘Unallocated

alimony and child support shall be paid until the death

of either party, the [plaintiff’s] remarriage or cohabitation as defined by . . . § 46b-86 (b), or until August

1, 2011.’

‘‘Section 3 (F) provides: ‘In the event of the termination of the alimony payments during the minority of

the child, the parties shall determine the amount of

child support to be paid by the [defendant] during his

lifetime to the [plaintiff] for the support of [the] child

and in the event they are unable to agree, the amount

of such child support payments shall be determined by

a court of competent jurisdiction. Said amount shall be
paid retroactive to the date of the termination of

alimony.’

‘‘On May 25, 2010, the defendant filed a postjudgment

motion for modification of unallocated support, medical and other expenses. On November 24, 2010, the

plaintiff filed a motion for contempt, alleging, in part,

that the defendant was in wilful contempt for failing to

pay unallocated alimony and child support as ordered

in the dissolution judgment. On April 21, 2011, the defendant filed a motion to ‘enforce termination of unallocated support and for other relief,’ arguing that, by

virtue of the self-executing language of § 3 (B) of the

agreement, the unallocated alimony and child support

obligation had terminated in December, 2007, because

the plaintiff, at that time, was cohabiting, as defined

by § 46b-86 (b). On July 7, 2011, the plaintiff filed a

postjudgment motion for child support, requesting that

the court enter child support orders if it found that

the unallocated alimony and child support order had

been terminated.

‘‘On April 17, 2012, following a hearing, the court

found that there had been a substantial change in circumstances warranting a reduction in the defendant’s

unallocated alimony and child support obligation, and

the court ordered the defendant to pay $200 per week

to the plaintiff in such unallocated alimony and support.

The substantial change in circumstances was that the

plaintiff and her then fiance ́, Steven Cooper, had executed a lease together and that they had cohabited from

December, 2007, through late March, 2008, with Cooper

sharing some of the plaintiff’s living expenses during

that period, thus altering her financial needs. The court

substantively applied § 46b-86 (b) and ordered that the

defendant’s unallocated support obligations were suspended during the time of the plaintiff’s cohabitation,

but that, otherwise, he continued to owe her unallocated alimony and child support. Further, the court

found that the defendant was in contempt for not having

paid such unallocated support to the plaintiff for a six

month period prior to his filing the May 24, 2010 motion

for modification.’’ Nation-Bailey v. Bailey, supra, 144

Conn. App. 321–23.

The defendant appealed from the judgment of the

trial court to the Appellate Court. In a divided decision,

the Appellate Court reversed the judgment of the trial

court. Id., 330. The Appellate Court majority agreed

with the defendant’s claim that the trial court had

‘‘improperly applied the substantive terms of § 46b-86

(b), [and] modified the judgment by suspending his

unallocated alimony and support payments for four

months, rather than, as required by § 3 (B) of the

agreement, terminating such payments upon the plaintiff’s cohabitation in December, 2007.’’ Id., 323. Noting

that the fact of cohabitation, as defined by § 46b-86 (b)

and D’Ascanio v. D’Ascanio, 237 Conn. 481, 485–86, 678
A.2d 469 (1996), was undisputed for purposes of the

appeal, the Appellate Court concluded that the

agreement ‘‘clearly provides that alimony terminates

upon [the] death of either party, the remarriage or

cohabitation of the plaintiff as defined in § 46b-86 (b),

or on August 1, 2011 . . . .’’ (Footnote omitted.)

Nation-Bailey v. Bailey, supra, 144 Conn. App. 324; see

also id., 324 n.2 (citing Black’s Law Dictionary [4th Ed.

1968] for definition of ‘‘until’’ in determining meaning

of agreement).

In so concluding, the Appellate Court rejected the

plaintiff’s argument that the agreement’s reference to

§ 46b-86 (b) means that ‘‘the alimony award is not terminated upon cohabitation, although that is the sole remedy set forth in the agreement,’’ because ‘‘any reference

to § 46b-86 (b) in the agreement means that the court

has the authority in the event of cohabitation to modify

the amount of, to suspend or to terminate alimony,

despite any limitation of or delineation of a remedy in

the agreement.’’ Nation-Bailey v. Bailey, supra, 144

Conn. App. 325. The Appellate Court relied on this

court’s decision in D’Ascanio v. D’Ascanio, supra, 237

Conn. 481,3 and disagreed with the plaintiff’s reliance

on its decisions in Krichko v. Krichko, 108 Conn. App.

644, 948 A.2d 1092, cert. granted, 289 Conn. 913, 957

A.2d 877 (2008) (appeal withdrawn May 19, 2009), and

Mihalyak v. Mihalyak, 30 Conn. App. 516, 620 A.2d

1327 (1993). Nation-Bailey v. Bailey, supra, 326–28.

Accordingly, the Appellate Courtreversed the judgment

of the trial court and remanded the case ‘‘with direction

to renderjudgment terminating the defendant’s alimony

obligation as of the initial date of the plaintiff’s cohabitation, and for further proceedings consistent with this

opinion on the defendant’s child support obligation4

and on the plaintiff’s motion for contempt.’’5(Footnote

added.) Id., 330. This certified appeal followed. See

footnote 2 of this opinion.

On appeal, the plaintiff claims that the Appellate

Court improperly concluded that the use of the word

‘‘until’’ in § 3 (B) of the agreement ‘‘mandated the permanent cessation of unallocated alimony and child support upon a finding of cohabitation by the plaintiff.’’

Citing, inter alia, the Appellate Court’s decision in Pite

v. Pite, 135 Conn. App. 819, 43 A.3d 229, cert. denied,

306 Conn. 901, 52 A.3d 728 (2012), the plaintiff argues

that this was an improper construction because the

agreement lacks a clear and unambiguous provision

rendering the payment of unallocated support nonmodifiable as to term or amount. Thus, the plaintiff contends

that the fact that the agreement is modifiable means

that the use of the word ‘‘until’’ in § 3 (B) does not by

itself mandate termination of unallocated support. The

plaintiff relies on Scoville v. Scoville, 179 Conn. 277,

426 A.2d 271 (1979), forthe proposition that a trial court

retains the authority, when intervening circumstances

warrant, to extend an alimony obligation beyond a date
of termination contained in a judgment of dissolution.

The plaintiff further relies on Judge Borden’s opinion

dissenting from the judgment of the Appellate Court;

see footnote 5 of this opinion; and argues that the reference to § 46b-86 (b) in § 3 (B) of the agreement gave

the trial court access to the ‘‘ ‘full panoply ofremedies’ ’’

under the statute, such as modification, rather than

mandating termination of alimony upon a finding of

cohabitation.

In response, the defendant contends that the Appellate Court properly enforced, rather than ‘‘rewriting,’’

the unambiguous terms of § 3 (B) of the agreement.6

The defendant contends that the word ‘‘until,’’ as used in

§ 3 (B) of the agreement, is plainly and unambiguously a

‘‘word of limitation’’ that ‘‘establish[es] . . . that upon

[the] plaintiff’s cohabitation, [the defendant’s] alimony

obligation immediately terminates,’’ arguing that it does

not ‘‘[connote] that the cessation is temporary [such]

that the previous state of affairs can be resumed or

restored.’’ (Internal quotation marks omitted.) In support of this reading, the defendant relies on the

agreement’s linkage of cohabitation with events such

as death or the plaintiff’s remarriage, and contends that

‘‘unless the word ‘until’ is qualified by some other language indicating the possibility that the prior state of

affairs can be resumed or restored, there is no factual

basis upon which to conclude that the termination is

only temporary.’’ Disagreeing with Judge Borden’s dissenting opinion; see footnote 5 of this opinion; the

defendant also relies on D’Ascanio v. D’Ascanio, supra,

237 Conn. 481, Krichko v. Krichko, supra, 108 Conn.

App. 644, and Mihalyak v. Mihalyak, supra, 30 Conn.

App. 516, and argues that the incorporation ofthe definition of cohabitation from § 46b-86 (b) into § 3 (B) of

the agreement does not, as a matter of law, import the

entire statute into the agreement and, therefore, that

the trial court’s ‘‘equitable powers are sharply constrained’’ in the present case.7 We agree with the defendant, and conclude that the trial court lacked any

remedial powers to suspend the defendant’s unallocated support obligation for the duration of the plaintiff’s cohabitation because the plain language contained

within § 3 (B) of the agreement permanently terminated

the defendant’s unallocated support obligation upon

that cohabitation.

‘‘It is well established that a separation agreement

that has been incorporated into a dissolution decree

and its resulting judgment must be regarded as a contract and construed in accordance with the general

principles governing contracts. . . . When construing

a contract, we seek to determine the intent of the parties

from the language used interpreted in the light of the

situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the

parties is to be ascertained by a fair and reasonable

construction of the written words and . . . the lan-
guage used must be accorded its common, natural, and

ordinary meaning and usage where it can be sensibly

applied to the subject matter of the contract. . . .

When only one interpretation of a contract is possible,

the court need not look outside the four corners of the

contract. . . . Extrinsic evidence is always admissible,

however, to explain an ambiguity appearing in the

instrument. . . . When the language of a contract is

ambiguous, the determination of the parties’ intent is

a question of fact. . . . When the language is clear and

unambiguous, however, the contract must be given

effect according to its terms, and the determination of

the parties’ intent is a question of law. . . .

‘‘A contract is unambiguous when its language is clear

and conveys a definite and precise intent. . . . The

court will not torture words to impart ambiguity where

ordinary meaning leaves no room for ambiguity. . . .

Moreover, the mere fact that the parties advance different interpretations of the language in question does not

necessitate a conclusion that the language is ambiguous. . . .

‘‘In contrast, a contract is ambiguous if the intent of

the parties is not clear and certain from the language

of the contract itself. . . . [A]ny ambiguity in a contract

must emanate from the language used by the parties.

. . . The contract must be viewed in its entirety, with

each provision read in light of the other provisions . . .

and every provision must be given effect if it is possible

to do so. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the

contract is ambiguous.’’ (Citation omitted; emphasis

omitted; internal quotation marks omitted.) Parisi v.

Parisi, 315 Conn. 370, 383–84, A.3d (2015).

We conclude that § 3 (B) of the agreement plainly and

unambiguously provides that permanent termination of

the unallocated support obligation is the sole remedy

upon cohabitation by the plaintiff, particularly given

the provision’s use of the word ‘‘until’’ without further

qualification.8 As noted previously, § 3 (B) of the

agreement requires the payment of unallocated support

‘‘until the death of either party, the [plaintiff’s] remarriage or cohabitation as defined by . . . § 46b-86 (b),

or until August 1, 2011.’’ (Emphasis added.) We often

consult dictionaries in interpreting contracts, including

separation agreements, to determine whether the ordinary meanings of the words used therein are plain and

unambiguous, or conversely, have ‘‘varying definitions

in common parlance.’’ Remillard v. Remillard, 297

Conn. 345, 355, 999 A.2d 713 (2010); see also id., 355–56

(comparing conflicting dictionary definitions of term

‘‘ ‘cohabitation’ ’’ in determining that it was ambiguous

for purpose of contract interpretation). Thus, we

observe that the word ‘‘until’’ is a ‘‘function word to

indicate continuance (as of an action or condition) to

a specified time.’’ Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2003); see also id. (defining ‘‘until’’ as

conjunction for ‘‘up to the time that’’). Similarly, Black’s

Law Dictionary defines ‘‘until’’ as ‘‘[u]p to time of. A

word of limitation, used ordinarily to restrict that which

precedes to what immediately follows it, and its office

is to fix some point of time or some event upon the

arrival or occurrence of which what precedes will cease

to exist.’’ Black’s Law Dictionary (6th Ed. 1990); see

also Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254, 285, 14 A.3d 284

(2011) (Vertefeuille, J., dissenting) (comparing definition of ‘‘ ‘until’ ’’ with definition of ‘‘ ‘unless’,’’ which

is ‘‘ ‘conditional promise,’ ’’ and describing words as

having ‘‘very different meanings’’). Accordingly, the use

of the word ‘‘until,’’ standing alone, indicates that the

defendant’s unallocated support obligation was terminated upon the plaintiff’s cohabitation because the obligation ‘‘cease[d] to exist’’ at that ‘‘point of time or . . .

event.’’ Black’s Law Dictionary (6th Ed. 1990); see also

In re Marriage of Schu, 231 Cal. App. 4th 394, 396, 179

Cal. Rptr. 886 (2014) (interpreting marital settlement

agreement reserving court’s jurisdiction to award spousal support ‘‘ ‘until’ ’’ wife is released from prison and

holding that jurisdiction did not expire immediately

after wife’s release where motion was filed prior to her

release and hearings on that motion had been continued); cf. Bergman v. Bergman, 25 Va. App. 204, 214,

487 S.E.2d 264 (1997) (concluding that term ‘‘ ‘shall

cease’ ’’ in divorce settlement agreement clearly and

unambiguously meant that alimony would ‘‘end permanently’’ and not be ‘‘temporarily suspend[ed]’’ upon

cohabitation, particularly given its linkage to death

and remarriage).

The surrounding contractual provisions also support

our conclusion that the agreement clearly and unambiguously provides that the unallocated support obligation

terminates upon the plaintiff’s cohabitation, and that

there is no other remedy, such as suspension, available.

First, the agreement treats cohabitation as an event

akin to death or remarriage, both of which are events

that ordinarily terminate a periodic alimony obligation

absent an express provision to the contrary in the

court’s decree or incorporated settlement agreement.9

See Williams v. Williams, 276 Conn. 491, 499–500, 886

A.2d 817 (2005) (discussing default presumption that

alimony obligation terminates upon recipient’s remarriage); see also id., 501 (upholding trial court decision

not to terminate alimony upon remarriage because separation agreement’s ‘‘provision regarding duration of

alimony does not provide that alimony shall terminate

upon remarriage; rather, it expressly provides that it

shall terminate only upon the death of either party or

by a date certain’’); Pulvermacher v. Pulvermacher, 166

Conn. 380, 384, 349 A.2d 836 (1974) (describing decree

that ‘‘specifically and unequivocally orders that the payments ‘continue without any diminution whether or not
the defendant remarries and shall not terminate if the

plaintiff remarries or dies, and in the event of the death

of the defendant, the unexpired payments shall be an

indebtedness of his estate’ ’’). Second, this language in

the agreement is not juxtaposed with any other remedies with respect to unallocated support available upon

a triggering event. Lastly, § 3 (F) of the agreement

expressly contemplates termination of the unallocated

support obligation, and requires the determination of

child support ‘‘[i]n the event of the termination of the

alimony payments during the minority of the child

. . . .’’

The plaintiff does not dispute that the language set

forth in § 3 (B) of the agreement is automatic and selfexecuting with respect to stopping the unallocated support obligation immediately upon her cohabitation—at

least temporarily.10 See Krichko v. Krichko, supra, 108

Conn. App. 651–52; Mihalyak v. Mihalyak, supra, 30

Conn. App. 522. Rather, relying on Judge Borden’s dissenting opinion, she appears to argue that Krichko and

Mihalyak are distinguishable because the separation

agreements at issue in those cases did not refer specifically to § 46b-86 (b), whereas the agreement in this case

incorporates that statute’s definition of cohabitation

and, therefore, ‘‘must . . . be read to include the

court’s full panoply of powers under the statute, including, as in the present case, the power to suspend periodic alimony.’’ Nation-Bailey v. Bailey, supra, 144

Conn. App. 331 (Borden, J., dissenting). We disagree.

This reading of the agreement is inconsistent with the

parties’ use of the word ‘‘define’’ to limit the scope of

the reference to § 46b-86 (b) in relation to ‘‘cohabitation.’’ The word ‘‘define’’ means ‘‘[t]o explain or state

the exact meaning of words and phrases; to state explicitly; to limit; to determine essential qualities of; to determine the precise significance of; to settle; to establish

or prescribe authoritatively; to make clear.’’ Black’s

Law Dictionary (6th Ed. 1990); see also id. (defining

‘‘definition’’ as, inter alia, ‘‘[t]he process of stating the

exact meaning of a word by means of other words,’’ or

‘‘an explanation of the meaning of a word or term’’).

Indeed, had the parties intended to import the remedial aspect of § 46b-86 (b), in addition to its definitional

portion, they could have used more expansive reference

terms such as ‘‘in accordance with’’ or ‘‘pursuant to.’’

See Black’s Law Dictionary (6th Ed. 1990) (defining

‘‘accordance’’ as ‘‘[a]greement; harmony; concord; conformity’’ and stating that ‘‘ ‘[p]ursuant to’ means ‘in the

course of carrying out: in conformance to or agreement

with: according to’ and, when used in a statute, is a

restrictive term’’); Merriam-Webster’s Collegiate Dictionary, supra (defining ‘‘according to’’ as ‘‘in conformity with’’ and defining ‘‘pursuant to’’ as ‘‘in carrying

out: in conformity with’’); see also In re Steven Daniel

P., 309 P.3d 1041, 1044 (Nev. 2013) (statute requiring

proceedings ‘‘pursuant to’’ second statute means that
requirements of second statute must be followed);

Stocker v. Sheehan, 13 App. Div. 3d 1, 8–9, 786 N.Y.S.2d

126 (2004) (explaining that phrase ‘‘ ‘pursuant to’ ’’ is

more restrictive than ‘‘ ‘consistent with’ ’’). Similarly,

had the parties desired only to suspend, rather than

terminate, alimony during the period of cohabitation,

they could have used specific contractual language to

that effect. See, e.g., Melletz v. Melletz, 271 N.J. Super.

359, 361, 638 A.2d 898 (App. Div.) (dissolution

agreement provided that ‘‘ ‘[h]usband’s alimony obligation shall be suspended during the period of cohabitation if the wife cohabits with a male unrelated to her

by blood or marriage’ ’’), cert. denied, 137 N.J. 307, 645

A.2d 136 (1994). We therefore conclude that the parties’

use of § 46b-86 (b) to define the term ‘‘cohabitation’’

means nothing more than that the defendant was

required to prove that (1) the plaintiff was living with

Cooper, and (2) the living arrangement with Cooper

caused a change of circumstances so as to alter the

financial needs of the plaintiff.11 See D’Ascanio v. D’Ascanio, supra, 237 Conn. 486; see also id., 485 (noting

that parties did not contest that modification

agreement’s use of term ‘‘ ‘cohabitates, as defined by

statute,’ ’’referred to definition set forth in § 46b-86 [b]).

Thus, Judge Borden, in dissenting from the judgment

of the Appellate Court, may well be correct in his observation that denying the trial court the remedy of modification upon cohabitation runs counter to the ‘‘broad

remedial purpose’’ of § 46b-86 (b). Nation-Bailey v.

Bailey, supra, 144 Conn. App. 333. This case is, however, purely one of contractual interpretation, and the

limited use of § 46b-86 (b) in the agreement removes

this matter from the ambit of the statutory construction

process, insofar as we are bound to give effect to the

plain and unambiguous language that the parties, each

represented by counsel, used in drafting the agreement

that ultimately was incorporated into the judgment of

dissolution.12 See, e.g., Parisi v. Parisi, supra, 315 Conn.

383; see also Williams v. Williams, supra, 276 Conn.

501–502 (concluding that settlement agreement

‘‘clear[ly] and unequivocal[ly]’’ provided that modifications upon remarriage were to be governed by § 46b86 [b], requiring court to follow that statute despite fact

that legislature intended it to govern cohabitation, and

that legislative ‘‘intent has no bearing on whether parties or the dissolution court can invoke the statute for

a different purpose in an agreement or decree’’).

‘‘[C]ourts do not unmake bargains unwisely made.

Absent other infirmities, bargains moved on calculated

considerations, and whether provident or improvident,

are entitled nevertheless to sanctions of the law. . . .

Although parties might prefer to have the court decide

the plain effect of their contract contrary to the

agreement, it is not within its power to make a new

and different agreement; contracts voluntarily and fairly

made should be held valid and enforced in the courts.’’
(Emphasis omitted; internal quotation marks omitted.)

Tallmadge Bros., Inc. v. Iroquois Gas Transmission

System, L.P., 252 Conn. 479, 505–506, 746 A.2d 1277

(2000). Accordingly, we conclude that the Appellate

Court properly construed § 3 (B) of the agreement to

require the permanent termination of the unallocated

support obligation immediately upon the plaintiff’s

cohabitation.

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C. J., and ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js., concurred.

1 General Statutes § 46b-86 (b) provides: ‘‘In an action for divorce, dissolution of marriage, legal separation or annulment brought by a spouse, in

which a final judgment has been entered providing for the payment of

periodic alimony by one party to the other spouse, the Superior Court may,

in its discretion and upon notice and hearing, modify such judgment and

suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person

under circumstances which the court finds should result in the modification,

suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs

of that party. In the event that a final judgment incorporates a provision of

an agreement in which the parties agree to circumstances, other than as

provided in this subsection, under which alimony will be modified, including

suspension, reduction, or termination of alimony, the court shall enforce

the provision of such agreement and enter orders in accordance therewith.’’

Although § 46b-86 has recently been amended by our legislature; see, e.g.,

Public Acts 2013, No. 13-213, § 4; those amendments have no effect on our

resolution of the present appeal. In the interest of simplicity, we refer to

the current revision of the statute.

2 We granted the plaintiff’s petition for certification limited to the following

issue: ‘‘Did the Appellate Court correctly determine that the trial court

improperly suspended the payment of unallocated alimony and support

payments for four months, rather than terminating such payments in accordance with § 3 (B) of the separation agreement?’’ Nation-Bailey v. Bailey,

310 Conn. 953, 82 A.3d 625 (2013).

3

In particular, the Appellate Court looked to D’Ascanio v. D’Ascanio,

supra, 237 Conn. 481, ‘‘for guidance on the issue of whether the agreement’s

self-executing provision terminating alimony in the event of cohabitation

should have been enforced by the court after it found that the plaintiff had

cohabited as defined in § 46b-86 (b).’’ Nation-Bailey v. Bailey, supra, 144

Conn.App. 326. Observing that ‘‘[t]he language ofthe modification agreement

in D’Ascanio is similar to the language in the present case, in that it defines

cohabitation by reference to § 46b-86 (b),’’ the Appellate Court relied on

this court’s holding in D’Ascanio that, ‘‘because the modification agreement

defined cohabitation by reference to § 46b-86 (b) . . . once the trial court

found that the defendant had cohabited as defined in § 46b-86 (b), ‘the [trial]

court should have enforced the terms of the modification agreement’ ’’ by

halving the weekly alimony payment ‘‘retroactive to the date the defendant

began cohabiting.’’ (Citation omitted.) Id., 327; see also id. (‘‘[w]e therefore

conclude that D’Ascanio governs this case and that the [trial] court improperly modified the defendant’s alimony obligation pursuant to the remedies

available in § 46b-86 [b], rather than terminating the plaintiff’s alimony as

of the initial date of cohabitation as required by § 3 [B] of the agreement,

which was incorporated by reference in the judgment’’).

4 Acknowledging § 3 (F) of the agreement, the Appellate Court concluded

that ‘‘additional findings on issues relating to child support are necessary

and that the trial court on remand should make such findings and establish

any necessary orders.’’ Nation-Bailey v. Bailey, supra, 144 Conn. App. 330;

see also id., 329–30 (Connecticut court retained jurisdiction over child support matter under General Statutes § 46b-212h [a] because of parties’ consent, despite fact that they had moved to California with their child and

California court had changed custody of child). The Appellate Court’s decision with respect to child support is not at issue in this certified appeal.

5 Dissenting from the judgment of the Appellate Court, Judge Borden

disagreed with the majority’s conclusion ‘‘that the trial court improperly

temporarily suspended, rather than terminated, the unallocated alimony and
support award contained in the judgment.’’ Nation-Bailey v. Bailey, supra,

144 Conn. App. 330 (Borden, J., dissenting). Judge Borden concluded that

the agreement’s reference to ‘‘ ‘cohabitation as defined by . . . § 46b-86 (b)’

must, as a matter of law, be read to include the court’s full panoply of

powers under the statute, including, as in the present case, the power to

suspend periodic alimony.’’ Id., 331. Describing the trial court’s decision to

suspend, rather than permanently terminate, the alimony obligation as a

‘‘commonsense position,’’ Judge Borden concluded that the ‘‘majority’s focus

on the language ‘cohabitation as defined by . . . § 46b-86 (b)’ as limited to

the statutory definition, without also including the accompanying remedial

powers of the court, finds no support in the actual language of the statute.’’

Id., 332–33.

After disagreeing with the majority’s reading of the relevant cases; see

id., 334–36; Judge Borden then challenged the majority’s reading of the

agreement’s language, stating, inter alia, that the majority ‘‘puts more weight

on the word ‘until’ than it can bear. The use of that word in the judgment

is equally consistent with the trial court’s ruling in the present case, because

by suspending the alimony, rather than terminating it as sought by the

defendant, the word could carry a similar meaning: for example, the alimony

continues ‘until’ cohabitation under the statute, which carries the court’s

range of equitable powers.’’ Id., 336.

For additional discussion of Judge Borden’s dissenting opinion, see footnote 11 of this opinion and accompanying text.

6 The defendant also argues that there was no legal or equitable justification for the trial court to ‘‘rewrite’’ the agreement, observing that: (1) the

agreement was fairly negotiated, without coercion or duress;(2) both parties

were represented by counsel during negotiations; and (3) similar provisions

are commonly used in Connecticut, and have not been found void as against

public policy. Because the substantive or procedural validity of the

agreement itself is not at issue in this certified appeal; see footnote 2 of

this opinion; we decline to address these arguments. We similarly need

not address the defendant’s argument that the plaintiff, by concealing her

cohabitation with Cooper from the defendant, breached the covenant of

good faith and fair dealing and caused him economic harm by continuing

to collect alimony for one and one-half years longer than she was entitled.

7 To this end, the defendant further argues that the plaintiff’s reliance on

Scoville v. Scoville, supra, 179 Conn. 277, and Pite v. Pite, supra, 135 Conn.

App. 819, is misplaced because those cases concern a trial court’s power

under § 46b-86 (a) to modify alimony before a terminating event, while the

present case concerns a trial court’s decision, in essence, to restore alimony

after a terminating event underthe self-executing language of the agreement,

namely, cohabitation.

8 We note at the outset that this case is procedurally similar to D’Ascanio

v. D’Ascanio, supra, 237 Conn. 481, upon which the defendant relies heavily

and the Appellate Court treated as ‘‘govern[ing].’’ Nation-Bailey v. Bailey,

supra, 144 Conn. App. 327. In D’Ascanio v. D’Ascanio, supra, 486–87, the

principal issue, however, was whether the trial court properly had found

that cohabitation had occurred; this court determined that the parties had

stipulated to the relief that a finding of cohabitation would trigger, namely,

requiring the court to halve the weekly alimony payment in accordance with

the terms of the settlement agreement. See also id., 488–90 (relying on

stipulation at trial to conclude that trial court improperly relied on equitable

conclusion regarding wife’s financial needs in reducing husband’s weekly

alimony payment by $100, rather than $350 provided by modification

agreement). We agree with Judge Borden’s observation that this appeal is

distinguishable from D’Ascanio, because that case ‘‘did not address, and

cannot be read to bear on, the issue in the present case, in which there was

no such stipulation and in which the parties did address the issue of whether

the court had the power to suspend, rather than to terminate, the alimony.’’

Nation-Bailey v. Bailey, supra, 336.

9

Indeed, at oral argument before this court, the plaintiff conceded that

the death of one of the parties would terminate the defendant’s unallocated

support obligations under the agreement.

10 Specifically, the plaintiff does not challenge the Appellate Court’s determination that the agreement used language that rendered it self-executing,

thus automatically stopping the defendant’s alimony obligation as soon as

the plaintiff cohabited. See Krichko v. Krichko, supra, 108 Conn. App. 646–52

(concluding that provision terminating alimony ‘‘ ‘on the earliest of the

following events to occur,’ ’’ including death and ‘‘ ‘remarriage or cohabitation’ ’’ of wife, without reference to § 46b-86 [b], was ‘‘self-executing upon
cohabitation,’’ and trial court ‘‘improperly failed to conclude that the plaintiff’s alimony obligation terminated as of the date the defendant began

cohabiting’’); Mihalyak v. Mihalyak, supra, 30 Conn. App. 522 (concluding

that provision for alimony termination upon cohabitation was ‘‘automatic

and self-executing,’’ and trial court, therefore, improperly ended defendant’s

alimony obligation on date he filed motion for modification, rather than

when cohabitation began).

Thus, we agree with the defendant’s argument that the plaintiff inaptly

relies on Scoville v. Scoville, supra, 179 Conn. 277, and Pite v. Pite, supra,

135 Conn. App. 819, for the proposition that the agreement’s lack of a

provision rendering the alimony obligation nonmodifiable as to term or

amount, means that the use of the word ‘‘until’’ in § 3 (B) did not by itself

mandate termination. See Scoville v. Scoville, supra, 280 (orders that are

ambiguous as to modifiability are treated as modifiable). The plaintiff’s

reliance on these cases is misplaced. In Scoville, this court concluded that,

absent an express preclusion of modification, the trial court retained the

authority to extend an alimony award that originally had been for a three

year fixed duration. Id. In rejecting the defendant’s argument that the extension was barred, we emphasized that ‘‘[o]ur interpretation does not render

superfluous the second sentence of the alimony order. Rather, we view that

sentence as placing a time limitation on the alimony payments should no

intervening material change in circumstances occur prior thereto.’’ Id.; see

also Pite v. Pite, supra, 825–26 (judgment language ambiguous, and thus

subject to modification, when it provided for termination of alimony upon

plaintiff’s sixtieth birthday, but did not contain express provision rendering

award nonmodifiable). In contrast to Scoville and Pite, wherein the modification motion was filed prior to the terminating event, namely, the end of the

three year term in Scoville and the wife’s sixtieth birthday in Pite, the selfexecuting language of the agreement in this case terminated the defendant’s

obligation automatically upon the plaintiff’s cohabitation, thus divesting the

trial court of any authority to modify the agreement after the occurrence

of that event.

11 Judge Borden contended in his dissenting opinion that it is improper

to ‘‘focus on the language ‘cohabitation as defined by . . . § 46b-86 (b)’ as

limited to the statutory definition, without also including the accompanying

remedial powers of the court,’’ because that construction ‘‘finds no support

in the actual language of the statute.’’ Nation-Bailey v. Bailey, supra, 144

Conn. App. 333. Quoting this court’s decision in DeMaria v. DeMaria, 247

Conn. 715, 720, 724 A.2d 1088 (1999), Judge Borden observes that § 46b-86

(b)‘‘does not even contain the word cohabitation. Instead, it uses the broader

language of living with another person rather than cohabitation.’’ (Internal

quotation marks omitted.) Nation-Bailey v. Bailey, supra, 332–33. Observing

that § 46b-86 (b) is ‘‘one long sentence’’ that begins with the ‘‘remedial

powers of the court,’’ Judge Borden then argued that it is improper to

‘‘slic[e] the purported definitional part from the remedial part.’’ Id., 333. We

respectfully disagree.

In our view, the reference in the agreement to the definitional portion of

§ 46b-86 (b) is significant, despite the fact that the statute does not define

or even use the term ‘‘cohabitation.’’ The word ‘‘cohabitation’’ is ‘‘not inflexible nor is it one of strict or narrow meaning.’’ DeMaria v. DeMaria, supra,

247 Conn. 720; see also id., 720–22 (trial court properly relied on § 46b-86

[b] as ‘‘a matter of common-law adjudication’’ to interpret undefined term

‘‘cohabitation’’ in dissolution judgment to require ‘‘party making alimony

payments prove that the living arrangement has resulted in a change in

circumstances that alters the financial needs of the alimony recipient’’).

Indeed, in Remillard, we recently reviewed numerous dictionaries in

determining that the word ‘‘cohabitation’’ was ambiguous as used in a separation agreement, because some definitions contemplated a ‘‘dwelling together

of man and woman in the same place in the manner of husband and wife,’’

while others encompassed the ‘‘broader definition’’ of simply living together.

(Internal quotation marks omitted.)Remillard v.Remillard, supra, 297Conn.

356; see also id., 356–57 (upholding trial court’s factual determination based

on extrinsic evidence and modifying phrase ‘‘ ‘with [an] unrelated female’ ’’

that parties intended term ‘‘ ‘cohabitation’ ’’ to require ‘‘sexual or romantic relationship’’).

These cases demonstrate that the parties’ reference to § 46b-86 (b) as

providing the sole definition of ‘‘cohabitation’’ for the agreement in this case

is meaningful, particularly given ongoing debate, discussed at oral argument

before this court, and exemplified by Remillard v. Remillard, supra, 297

Conn. 345, about whether ‘‘cohabitation’’ must include some romantic com-
ponent beyond a shared living situation. Reflecting the plaintiff’s acknowledgment that the agreement was a result of a negotiated compromise, it

relieved the defendant from having to prove that the plaintiff’s new living

situation is romantic in nature, while simultaneously protecting the plaintiff

from the termination of her unallocated support based solely on her decision

to live with someone, without consideration of the financial consequence

of that situation.

12 We note with interest a similar case pending before the New Jersey

Supreme Court. In Quinn v. Quinn, Docket No. A-2876-11T1, 2014 WL

1909479 (N.J. Super. App. Div. May 14, 2014), the Appellate Division of the

New Jersey Superior Court upheld a trial court’s decision to suspend, rather

than terminate, the husband’s alimony obligation because of the wife’s

cohabitation, despite the fact that the ‘‘divorce settlement agreement provides that ‘[a]limony shall terminate upon . . . the [w]ife’s cohabitation,

per case or statutory law.’ ’’ In September, 2014, the New Jersey Supreme

Court granted certification to review this aspect of the Appellate Division’s

decision; that certified appeal has not yet been argued or decided. See

Quinn v. Quinn, 219 N.J. 631, 99 A.3d 835 (2014); see also New Jersey

Judiciary, ‘‘Track Supreme Court Appeals,’’ (last modified March 30, 2015),

available at http://www.judiciary.state.nj.us/calendars/sc appeal.htm (last

visited April 1, 2015) (Unofficial note stating that the issue in the certified

appeal is, ‘‘[u]nderthe circumstances presented, was [the] defendant entitled

to terminate his alimony payments, pursuant to the divorce settlement

agreement, based upon [the] plaintiff’s cohabitation?’’).